As the situation related to the SARS-CoV-2 virus and the disease it causes, “coronavirus disease 2019” (COVID-19), is rapidly evolving, cities across Minnesota are adjusting to state and federally issued guidelines and directives necessitating certain changes to city operations. Many cities have temporarily ceased operations at city-operated facilities, such as libraries and recreation centers, modified work duties, and reconsidered how work is being performed. Currently, many public-facing city positions are experiencing far less public interaction; positions providing nonessential services to the community, in some cases, have a drastically reduced workload, and public safety employees are staggering their work schedules to facilitate social distancing and prevent transmission of COVID-19 in the workplace.
Regardless of any individual city’s situation, cities across the state are doing what they can to ensure public services are maintained, while best protecting the health and safety of the public and the city’s employees.
Here is a summary of employment actions cities can consider taking as they adjust to changing operations, and what should be considered prior to taking any such action, especially with unionized employees. These actions include:
- Perform Long-Term Tasks
- Perform Duties from Other Jobs
- Leave Flexibility
- Reduce Work Schedule
I. WHAT IS MANAGEMENT RIGHT VS. NEGOTIABLE RIGHT?
First and foremost, for any of the employment actions described below, the city should first consider whether the action is a management right, or whether the city may be required to meet and negotiate with an exclusive representative of impacted employees related to establishing, modifying, or eliminating related components of employment.
Assigning work and the manner in which it is done, scheduling employees, creating, modifying, and eliminating positions, and laying off employees, are generally management rights under the Public Employment Labor Relations Act (PELRA) (Minn. Stat. §§ 179A.01-.25). PELRA provides that a public employer is not required to meet and negotiate with an exclusive representative (i.e., union) of impacted employees over matters of inherent managerial policy.
The matters of inherent managerial policy include, but are not limited to: “such areas of discretion or policy as the functions and programs of the employer, its overall budget, utilization of technology, the organization structure, selection of personnel, and direction and number of personnel” (Minn. Stat. § 179A.07, subd. 1.)
The city’s rights may either be (1) bolstered by; or (2) prohibited, restricted, or waived through applicable collective bargaining agreement language. Prior to taking any personnel action described below, the city should carefully consider the language contained in collective bargaining agreements between the city and impacted employees.
Important to note, the Minnesota Supreme Court has opined an employer action that may in itself be considered an inherent managerial right may have effects on terms and conditions of employment that may still be subject to negotiation. Whether an employer’s exercise of its management right may be negotiable is determined using a “balancing of interests” analysis, which is described in more detail related to specific employment actions below. In short, if the “balancing of interests” is in favor of the union, the city would generally be required to meet and negotiate in good faith with the union on the city’s exercise of a management right (I.S.D. No. 88, New Ulm v. School Service Employees Union Local 284, 503 N.W.2d 104, 107 (Minn. 1993)).
We recommend cities notify and discuss with union representatives any intended actions that substantially impact components of employment for unionized employees. But, in any communication to unions, cities should not concede that anything is negotiable, but the city is willing to meet and negotiate anything that is negotiable.
II. EMPLOYMENT ACTIONS
1. Perform Long-Term Tasks
City administration may first want to consider whether there are certain long-term tasks it can have an employee perform who is either prevented from performing typical day-to-day work tasks, or otherwise has a reduced workload.
Depending on the position in question, long-term tasks may include revising or providing feedback on departmental policies and procedures, creating training materials and other reference materials for new employees, or updating records to a more user-friendly electronic format.
- Management right or negotiable?
Assuming the impacted employee is not performing substantial duties from other jobs, this “employment action” is relatively uninvolved, and assigning and directing work in this manner is generally an inherent management right not requiring negotiation with the union.
However, assigning long-term tasks may not be an option appropriate for all positions, and may only provide a short-term solution depending on the department’s project list.
2. Perform Duties from Other Jobs
Following from the above, cities may have certain positions without sufficient long-term tasks or projects to complete, and therefore may desire those individuals perform duties from other positions.
- Management right or negotiable?
Before considering this option, the city should evaluate whether this action would result in an individual(s) not in the bargaining unit performing work otherwise performed by a bargaining unit employee. If so, the union may dispute such work being done by others as impermissible performance of bargaining unit work performed by a non-bargaining unit employee(s). The union may challenge the city’s actions through the collective bargaining agreement’s grievance arbitration process, or an unfair labor practice claim in district court.
- Contract items bolstering or limiting this right
Relevant collective bargaining agreement items to consult may include: (1) the “Employer Authority” or “Management Rights” provision that may bolster the right to take this action; and (2) the “Recognition” provision that may include a position within the bargaining unit that has work duties being assigned to a non-bargaining unit position, potentially limiting the city’s right to take this action.
Even if the city determines it would be directing or assigning